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by Linda Holmes, J.D.

Why Judges Need Rules: The Case of the Dissent That Wasn’t

Sept. 2, 2008

Judges have robes for a variety of reasons, one of which is to present an image of unity. Sports teams wear uniforms; so do the salespeople at Best Buy. The robe uniform makes judges seem like a team. This appearance is reflected in much of the language surrounding court decisions as well: the court decides, the court holds, the court grants, the court denies.

But in another sense, a court is a bunch of lawyers with disagreements and resentments of their own. Now and then, you see them.

About two weeks ago, five justices of the Mississippi Supreme Court voted to prevent the dissenting opinion of a sixth, Oliver Diaz, from even becoming part of the court file, as if it never happened. After Diaz publicly proclaimed his outrage and the story got attention in the local media, the Court decided to allow the dissent to become part of the record.

The basic disagreement goes back to the fundamentals of how opinions are issued. In this case, the order from which Diaz dissented was just that — an order, not a decision on a case. The order dismissed the writ of certiorari as improvidently granted; in other words, the Court had agreed to take the case but, with the order, changed its mind and chose not to decide the case after all.

The Background

It’s ultimately helpful to understand how the Court got into this situation. In a 2006 decision, Jenkins v. Pensacola Health Trust, the Court held that the statute of limitations for a wrongful-death claim begins on the date of the act that led to the death, not on the date of the death. In other words, depending on how long it takes a wrongful act to kill a person, the claim could expire before the person even dies. This, in turn, could mean that unless someone stakes out a wrongful-death claim in anticipation of death while he or she is still alive, that person’s descendants will lose the ability to recover.

Diaz, who did not participate in the Jenkins case, considers this position ridiculous and believes that a statute of limitations for wrongful death cannot rationally begin until the death occurs. (Only five justices out of the current nine participated in Jenkins; all were in agreement.)

In the case at issue, the survivors of Billy Pettigrew sued the Mississippi State Veterans Affairs Board in 2006 for wrongful death, and the board moved for summary judgment, claiming in part that the statute of limitations on the wrongful-death claim had run, as per Jenkins. The lower court denied the motion for summary judgment and kept the lawsuit alive. The board filed an appeal of the denial of its motion, and the Mississippi Supreme Court agreed to hear the case.

Two years later and, according to Diaz’s public statements, 25 days before the deadline to render its opinion, the Court, acting on its own motion, reversed itself and dismissed the writ of certiorari as improvidently granted. There would be no decision.

The Dissent

It’s tempting to speculate that Diaz was infuriated because he believed he had a decent shot at getting Jenkins overturned. As he later wrote, the opportunity to do that was lost because four justices voted to take back the decision to consider the Pettigrew case at all. In response to the dismissal of the writ, Diaz wrote his dissent to the order, outlining his objections to Jenkins. At this point, a majority of the rest of the Court voted to disallow his dissent and instructed the Court administrator not to include it in the file.

What is remarkable about the dissent is how unremarkable it is. While it calls the result of the Jenkins rule “absurd,” it isn’t as if the dissent is unseemly or unprofessional, directed personally at other justices or somehow likely to undermine the Court.

The Court explained that because the majority did not file an opinion when it dismissed the petition, the Court had no opportunity to dissent. In other words, a judge cannot dissent from an order, only from the opinion issued along with it.

Furthermore, appellate courts make a point not to issue “advisory opinions” — that is, opinions that explain the position of a judge or court without resolving an actual, live controversy. Judges don’t publish opinions simply to provide information about what they would do or will do in the event a case comes before them.

But there doesn’t appear to be consistent precedent for applying the advisory-opinion principle this way, or at least the court hasn’t cited it. Quite the contrary: U.S. Supreme Court justices dissent from denials of certiorari all the time, often when they have no opinion from which to dissent. Consider Knight v. Florida, a U.S. Supreme Court case in which the denial of certiorari (without opinion, other than a note pointing out that it was not a decision on the merits) produced both a concurrence from Justice Thomas and a dissent from Justice Breyer.

The Perception

In this case, what’s creating the appearance of unfairness is the Mississippi Supreme Court’s failure to, at least in public, present a rules-based explanation for barring the opinion.

This is a situation that, regardless of who’s right, looks bad. Four of the five justices who voted to disallow Diaz’s dissent were four of the five justices who voted for the Jenkins decision in the first place. (The other was not on the court at the time.) Diaz’s opinion, no matter how sincere the concerns over its appropriateness, wound up silenced mostly by the votes of those with whom he disagreed.

If indeed courts prefer to act as courts, and not as loose collections of judges, they have to take care not to feed concerns that they’ve collapsed into factions — that majority rule is now not merely deciding cases but also deciding when a differing opinion even gets to be aired.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.

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